In 2006, attorney Jody Neal-Post tried to get health insurance but was rejected because of treatment — counseling and Valium — she received following a domestic-abuse incident. She says the insurer told her that her medical history made her a high risk, more likely to end up in the emergency room or require additional care.

Four years earlier, Neal-Post says, she had been assaulted by her ex-husband in her home in Albuquerque, N.M. According to police records, both she and her ex-spouse were charged in the incident. The charges were later dropped.

She wasn’t prepared for the blow from the insurer. “I was just flabbergasted,” says Neal-Post, a 52-year-old attorney. During the altercation with her ex-husband, “I was beaten and choked in my living room,” she says. “I’m trying to keep my family together and get medical care. And then you make it through, with everyone back on track, and years later, when it’s no longer part of your daily life to remember that and you’re feeling good, it’s back again.”

Advocates say it’s not uncommon for people who have been abused to be denied insurance on the individual market. While the majority of states have barred insurance companies from using abuse as grounds for denying coverage, eight states and the District of Columbia don’t prohibit denying coverage for that reason. And even when states do have a law, it doesn’t necessarily prevent carriers from initially rejecting applicants who are victims of violence.

It’s unclear how often such rejections take place. But it is clear, experts say, that the fact that they occur at all can have a chilling effect on victims, who may be afraid to tell their doctors about attacks out of concern they’ll have trouble getting insurance in the future.

A State vs. Federal Issue

How victims of domestic abuse are treated by insurers now is emerging as part of the health care overhaul debate. “Think of this, you have survived domestic violence and now you are discriminated in the insurance market because you have a pre-existing medical condition,” House Speaker Nancy Pelosi, D-Calif., told leaders from women’s organizations at a press conference Tuesday. “Well, that will all be gone under this legislation,” she promised.

The health bill by the Senate Committee on Health, Education, Labor and Pensions would explicitly bar insurers from denying coverage based on domestic violence. In a recent speech, First Lady Michelle Obama said that using domestic abuse as a reason to deny coverage was among the insurance practices that “still wake me up at night.”

But for now, the issue is left to the states.

In some ways, Neal-Post was lucky. Her home state of New Mexico has strict laws prohibiting insurers from denying insurance based on a history of abuse. She’s also an attorney with experience representing victims of domestic abuse.

After her fight with her ex-husband, and the coverage denial by the insurer years later, she filed an official complaint with the state’s Public Regulatory Commission’s insurance division. The commission insisted the insurer reverse its decision, which the company did. But had Neal-Post lived in one of the states that does not offer protection against insurance discrimination for abuse, she might have ended up uninsured.

America’s Health Insurance Plans, an industry trade group, has supported laws that explicitly prohibit domestic abuse from being a factor in denying insurance. “We have encouraged all states to adopt the legislation,” referring to a “model law” developed by the National Association of Insurance Commissioners, says spokesman Robert Zirkelbach.

But Idaho, Mississippi, North Carolina, North Dakota, Oklahoma, South Carolina, South Dakota, Wyoming and the District of Columbia have not yet done so.

How Widespread Is the Problem?

There have been no recent surveys to gauge how often victims of domestic abuse are rejected by insurers. An informal 1994 survey conducted by the Senate Judiciary Committee subcommittee staff found that eight of the 16 largest U.S. insurers used domestic violence as a factor in deciding whether to offer insurance coverage and how much to charge.

Follow-up surveys by the insurance commissioners of Pennsylvania and Kansas the next year found that one in four responding insurers reported taking domestic violence into account when determining whether to issue or renew health, accident or life insurance policies.

To get a sense of current conditions, Kaiser Health News contacted the departments of insurance in the states that have not adopted a ban. The majority said they had never heard of the issue, nor had they ever seen a question on an insurance application specifically asking about domestic abuse. None found records of complaints from domestic violence victims who had been denied coverage. And several, including North Carolina’s department of insurance, said they had other stop-gap measures in place to prevent the practice.

“They’re Not Looking In The Right Places”

Nancy Durborow, Health Projects Manager for the Pennsylvania Coalition Against Domestic Violence, says she isn’t surprised that state departments of insurance haven’t heard about the problem. “They don’t see it because they’re not looking in the right places.”

Insurers never directly ask about abuse status on an application, Durborow explains. Instead, they learn about a history of domestic abuse in a myriad of other ways. They might find evidence in an applicant’s medical records, such as repeated visits to an emergency room or a doctor’s notation about abuse. Insurance agents may find out during an interview with the applicant. Durborow has even heard of cases where insurance agents have visited local courthouses to search for Protection from Abuse Orders, which are public information. Insurers may also see reports of domestic disturbances in a local newspaper.

In most states, insurance companies are not required by law to explain their decisions, so a domestic violence victim may never know why coverage was denied. Neal-Post adds that, because victims of domestic violence often remain silent, they wouldn’t necessarily ask the right questions. In her case, she says, “they just made the mistake of doing it to a lawyer. It’s flat-out wrong that I had to have professional skills and know-how to get covered.”

Fear Of Denial

Lisa James, director of health for the Family Violence Prevention Fund, a non-profit group that works to prevent domestic violence, says the fear of being denied coverage is almost as menacing as the actual denials. Some women have heard about this type of insurance discrimination, she says, “especially those who have spent time in shelters with others. Women are concerned about keeping their medical information confidential.”

In addition, the possibility of being denied insurance could discourage women from leaving an abusive partner. And for a woman with children, she says, the risks are multiplied. “It could be a denial not only for her, but she might also be worried that if she leaves, she won’t be able to take her children to the doctor.”

But the deterrent effects of these insurance practices don’t stop there – they also have been known to plague the doctor-patient relationship. According to James, women may not feel comfortable discussing their difficulties with medical providers for fear that the information could be used against them down the line. She also hears from doctors and nurses who are worried that they may be compromising their patients’ ability to get insurance by asking about and documenting abuse.

“The First Real Glimmer Of Hope”

James and Durborow both say that enacting a federal law prohibiting the practice would be the best way to protect victims of domestic violence. But, since 1995, numerous measures have been proposed unsuccessfully in both the House and Senate. One such proposal failed in the Senate health committee as recently as 2006.

Durborow, who has been lobbying for a federal law for the past 12 years, says health reform is “the first real glimmer of hope” that a ban on the practice will pass. “For many years they told us that enacting protections would bankrupt the insurance companies, but we’ve never heard that it’s been a problem” she says. “But people are now finally taking on the insurers.”

“When you look at statistics on the prevalence of family violence, you can see why some bean counter would think this is certainly a way to save money,” adds Neal-Post. “But the consequences are far reaching.”

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